This is
a civil rights action brought by state prisoner, Plaintiff
Kirk Labadie, against Defendants Douglas Mitchell, Justin
Fruchey, Frank Pingatore, and Matthew Touri, under 42 U.S.C.
§ 1983. The matter came before the Court for a bench
trial on January 17, 2017. The Court makes the following
findings of fact and conclusions of law in accordance with
Federal Rule of Civil Procedure 52(a).

I.
BACKGROUND

Plaintiff
Labadie brought an action under § 1983 alleging
excessive force against Defendant Mitchell and
failure-to-intervene claims against Defendants Fruchey,
Pingatore, and Touri, in violation of the Fourteenth
Amendment. On August 8, 2014, Plaintiff filed an amended
complaint. (ECF No. 12.) On February 29, 2015, Defendants
moved for summary judgment. (ECF No. 26.) The Court dismissed
Defendant Wagner and denied summary judgment for the
remaining Defendants. (ECF No. 37.) Plaintiff also moved for
summary judgment (ECF No. 49) on July 7, 2016, which the
Court denied (ECF No. 61).

On
January 6, 2017, the parties held a settlement conference and
final pre-trial conference before Magistrate Judge Ray Kent.
In preparation for trial, Defendants filed their proposed
findings of fact (ECF No. 83), a trial brief (ECF No. 93), a
joint statement of the case (ECF No. 94), proposed jury
instructions (ECF No. 95), a proposed verdict form (ECF No.
96), and a joint exhibit book (ECF Nos. 98, 99). Plaintiff
filed his proposed findings of fact (ECF No. 88) and
requested that the clerk file his proposed findings of fact
as his trial brief (ECF No. 92).

The
bench trial took place on January 17, 2017. The Court heard
testimony from Plaintiff Labadie, Defendant Mitchell,
Defendant Fruchey, Defendant Pingatore, and Defendant Touri.
The Court also received as exhibits a surveillance video from
the jail (Def.'s Ex. C), as well as photos taken of
Defendant Mitchell (Def.'s Ex. H) and Plaintiff
(Def.'s Ex. I) after the incident. Before trial began,
the Court denied Plaintiff's motion to appoint counsel
(ECF No. 97).

II.
FINDINGS OF FACT

On
August 19, 2012, Defendant Mitchell arrived at the Chippewa
County Jail to assist with an out-of-control inmate.
Defendant Mitchell responded to the Behavioral Management
Unit (“BMU”) of the jail, which houses assaultive
inmates with behavioral issues. By the time Defendant
Mitchell arrived, inmate Kammers had flooded his cell with
toilet water. The water had already exited Kammers' cell
and made its way toward other cells in the BMU. During this
time, inmate Kammers was agitated and irate; he was yelling
and throwing things in and out of his cell. Defendant
Mitchell approached inmate Kammers in an attempt to calm him
down while Defendants Fruchey, Pingatore, and Touri cleaned
up the excess water. At the same time, Plaintiff yelled to
Kammers, also in an attempt to calm him down. As Defendant
Mitchell spoke with Kammers, Plaintiff yelled so loudly that
Defendant Mitchell could not hear himself talk. Defendant
Mitchell walked to Plaintiff's cell, A7. In response,
Plaintiff stood up and approached Defendant Mitchell.
Defendant Mitchell testified that he felt threatened and
thought that Plaintiff was a threat to the safety and
security of the facility. Defendant Mitchell gave Plaintiff
direct, verbal orders to sit down and stop yelling. Plaintiff
refused and began to swear at Defendant Mitchell. Plaintiff
also threatened Defendant Mitchell twice. During the
exchange, Plaintiff's face was red, and he clenched his
fists and raised his arm towards Defendant Mitchell. This
lasted for approximately 30 seconds.

During
trial, Plaintiff admitted that he refused to comply with
Defendant Mitchell's orders. He testified that, in
response, Defendant Mitchell placed his chin on the bars of
the cell door and spat at him. It is unclear from the video
whether this in fact happened. Defendant Mitchell continued
to give Plaintiff loud, verbal commands to retreat to the
back of his cell and to put his hands on the wall. He
informed Plaintiff that he would be maced if he did not
cooperate. Again, Plaintiff refused to comply, so Defendant
Mitchell sprayed Plaintiff with Freeze spray, a form of
mace. It did not appear to have any effect on Plaintiff.
Then, Plaintiff threw approximately 5 gallons of liquid at
Defendant Mitchell, which soaked Defendant Mitchell.
Defendant again told Plaintiff to go to the back of his cell
and to put his hands on the wall, but Plaintiff refused.
Instead, Plaintiff threw a mug of lukewarm coffee at
Defendant Mitchell. Defendant Mitchell continued to order
Plaintiff to the back of his cell and to put his hands on the
wall or he would be maced again. Plaintiff still did not
comply, so Defendant Mitchell sprayed the mace once more.
Plaintiff then retreated to the back of his cell to wash his
face with water.

After
the second spray, Defendant Mitchell left Plaintiff's
cell to check on inmate Kammers while Defendant Touri
retrieved a restraint chair. Plaintiff continued to yell
after Defendant Mitchell left his cell. Two minutes later,
Defendant Mitchell returned to Plaintiff's cell and once
again, ordered him to go to the back of his cell. Defendant
Mitchell's goal was to get Plaintiff in a safe and secure
position for entry into the cell. Defendant Mitchell did not
want to go hands-on with Plaintiff because Plaintiff had
already made several threats to Defendant Mitchell during
their exchange. Defendant Mitchell gave several loud, verbal
commands, and warned Plaintiff that if he did not comply, he
would be tased. Defendant Mitchell did not yell TASER, TASER,
TASER, but he warned Plaintiff several times before using his
taser.

At one
point, Plaintiff reached through the cell bars and attempted
to slap Defendant Mitchell. He missed, but grabbed Defendant
Mitchell's right shoulder lapel and tore it. In response
to Plaintiff's assaultive behavior, Defendant Mitchell
used the probe application of his taser on Plaintiff. When
Defendant Mitchell pulled the trigger, two probes fired and
landed on Plaintiff's left abdomen and left leg. This
activated the taser for 5 seconds, and Plaintiff regained
control over his body after that time. During this time,
Defendants Touri and Fruchey arrived with the restraint
chair. Then, the three officers entered Plaintiff's cell.
Defendant Mitchell continued to give loud, verbal commands
but Plaintiff did not comply. Rather, he attempted to rip out
his taser probes. Defendant Mitchell warned Plaintiff that he
would be tased again if he did not roll over onto his stomach
and place his hands behind his head. Plaintiff continued to
actively resist, and Defendant Mitchell used his taser again.
Defendant Mitchell asked Plaintiff if he was done resisting
commands, and Plaintiff said that he was finished. Then,
Plaintiff stood up, with the taser probes still attached to
his body, and walked to the restraint chair. Plaintiff did
not limp or ask for medical attention as he walked to the
restraint chair. Defendant Fruchey and Defendant Touri
strapped Plaintiff into the restraint chair. Once restrained,
Plaintiff began to threaten Defendant Mitchell again. During
the entire exchange, Defendant Pingatore was at the control
box, about 50-100 feet away from the incident. He did not
observe Defendant Mitchell's use of the mace or taser,
but did see fluids come out of the cell. He could hear
yelling, but could not understand what was being said because
it was so loud in jail.

In
addition, Defendant Mitchell knew of Plaintiff, but had never
met him before August 19, 2012. Defendant Pingatore also
testified that Plaintiff was known to be a dangerous,
unpredictable inmate. Because of Plaintiff's disruptive
behavior, Defendant Mitchell believed that the BMU was on the
verge of a riot. Yet he admitted that the inmate in the
adjacent cell appeared calm during the exchange. He also
explained that the jail preserved the surveillance video in
preparation for a criminal trial. The jail saves video
surveillance on a hard drive for 15-30 days before it is
taped over. Therefore, Defendants could not produce
additional videos to show what happened in other parts of the
BMU that day.

Further,
Defendant Mitchell explained that he could not just walk away
or let Plaintiff remain in his cell. Once Plaintiff became
disruptive and assaultive, jail policy required Plaintiff to
be placed in a restraint chair and removed from his cell.
Defendants Fruchey, Touri, and Pingatore testified that
Defendant Mitchell acted appropriately, in accordance with
the Chippewa County Sheriff's Office taser policy and
procedure, as well as its inmate rules, discipline,
grievance, and rights policy.

Plaintiff
testified that his ankle was injured when Defendant Mitchell
tased him. He also complained of skin irritation and mental
duress. Plaintiff testified that he was fearful of
electricity and electrical appliances, switches, and sockets.
He admitted that he had anxiety prior to August 19, 2012, but
it has gotten worse. Plaintiff further testified that he is
presently serving a sentence for assault with intent to do
great bodily harm less ...

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